from the could-come-in-handy-one-day dept

Many of us tend to take the amazing resource of Wikipedia for granted: it's hard to imagine online life without it. But that doesn't mean its position is assured. As well as continuing funding uncertainty, it is also subject to legal attacks that call into question its innovative way of letting anyone create and edit articles. For example, in 2012 a former Italian Minister of Defense sued the Wikimedia Foundation in Italy for hosting a Wikipedia article he alleged contained defamatory information. He had sent a letter demanding that the article in question should be removed, without even specifying the exact page or where the problem lay, and filed the suit when the page was not taken down.

In 2013, the Civil Court in Rome ruled that the Wikimedia Foundation, which hosts Wikipedia, cannot be held liable for the content of Wikipedia articles, which it does not control. Unsurprisingly, the former minister appealed, and the Court of Appeals in Rome has just handed down its judgment, which is in favor of the Wikimedia Foundation:

In a ruling that provides strong protection for Wikipedia's community governance model, the Court once again recognized that the Wikimedia Foundation is a hosting provider, and that the volunteer editors and contributors create and control content on the Wikimedia projects. The Court also made clear that a general warning letter, without additional detail about the online location, unlawfulness, or the harmful nature of the content as recognized by a court, does not impose a removal obligation on a hosting provider like the Wikimedia Foundation.

Moreover:

the Court took notice of Wikipedia's unique model of community-based content creation, and the mechanisms by which someone can suggest edits or additions to project content. It found that Wikipedia has a clear community procedure for content modification, which Mr. Previti should have used to address his concerns. He could have reached out to the volunteer editors, provided reliable sources, and suggested amendments to the article, instead of sending a general warning letter to the Foundation.

According to the post on the Wikimedia blog, the article about the former minister will remain online, and Previti will pay the Wikimedia Foundation some of the expenses incurred in defending the lawsuit and appeal. That suggests the matter is now over. The ruling is good news in other ways. As well as recognizing the validity of the the community-based creation model, it also affirms that the Wikimedia Foundation is a hosting provider, not an organization that controls the articles themselves. That's important in the context of the proposed EU Copyright Directive, currently under discussion. Article 13 of the Directive would require upload filters on major sites that are actively involved in the publishing of material. The Italian Appeals Court ruling may help to shield Wikimedia from such an impossible requirement if it is still present in the final version of the EU legislation.

from the assembly-line-for-vehicles-of-censorship dept

Italy is rolling out new laws to deal with "fake news." The Italian government can't define this term precisely, but apparently assumes it will know it when it sees it. And the rest of the country is encouraged to "see something, say something," thanks to the government's online portal which will allow brigaders and hecklers to cleanse the web of things they don't like. Even if some of it stays up, those reported will possibly still have to spend some time interacting with government employees, which will mostly be a waste of everyone's time.

And that's just the bureaucratic side of it. This portal will link to law enforcement so Italy's uniformed cyberwarriors can go harass citizens over alleged fakery the government can't even clearly define. There's nothing like settling discussions about factual misconceptions with shows of force from government reps.

Seeing as the problem will get a whole lot worse before it devolves into just another tool of government oppression, UN Special Rapporteur David Kaye has fired off a formal letter to the Italian government, asking it to nuke its plan to tackle fake news with armed officers and government mandates.

The letter [PDF] points out the Italian government is, in essence, criminalizing differences of opinion. That's not going to keep it in line with internationally-recognized human rights.

The Human Rights Committee has emphasized that “free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues and to inform public opinion without censorship or restraint. Moreover, international human rights law provides States’ responsibility to ensure an environment in which a diverse range of political opinions and ideas can be freely and openly expressed and debated. Freedom of expression also includes sharing one’s beliefs and opinions with others who may have different opinions. In the Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda, my mandate together with other regional freedom of expression experts stressed that the “human right to impart information and ideas is not limited to “correct” statements, and “protects information and ideas that may shock, offend, and disturb”.

[...]

In light of these standards, the Joint Declaration on Freedom of expression and “Fake News” has concluded that “general prohibitions on the dissemination of information based on vague and ambiguous ideas, including “false news” or “nonobjective information” are incompatible and should be abolished.

Further driving this point home, Kaye states the cold hard fact that laws like these, however well-intended, end up being vehicles of a particular brand of censorship.

The lack of clarity concerning how the Protocol would operate, coupled with the threat of criminal sanctions, raises the danger that your Excellency’s Government will become arbiters of truth in the public and political domain. Accordingly, I am concerned that the Protocol would disproportionately suppress a wide range of expressive conduct essential to a democratic society, including criticism of the government, news reporting, political campaigning and the expression of unpopular, controversial or minority opinions.

Every law that curtails speech ends up being abused by the government that put it into effect. There are no exceptions. As is noted here, laws like these allow the government to decide what speech is acceptable using vague guidelines that effectively allow it to suppress dissent and criticism. There's no way to narrowly craft a law aimed at regulating a certain form of speech ("fake news") that has zero chance of ever being universally and concisely defined.

from the let-a-bold-new-era-of-SWATing-begin! dept

No one knows how to handle "fake news." Rather than step back and see what light-touch approaches might work, governments all over the world are rushing forward with bad ideas that harm speech and threaten journalism. No one seems to be immune to the "do something" infection and everything proposed is just another way to give governments more direct control of social media platforms and news outlets.

In Italy, the government control of speech under the guide of "fake news" deterrence is being done in the worst way possible. It's not being handed to a regulatory body with instructions to sort of keep an eye on things. Instead, as Poynter reports, it's rolling out as a heckler's veto backed by armed officers.

In an effort to address fake news ahead of this year's elections, the Italian government has created an online portal where people can report hoaxes.

The portal, which Interior Minister Marco Minniti announced Thursday, prompts users to supply their email address, a link to the misinformation they're reporting and any social networks they found it on.

Then the requests are ferried to authorities at the Polizia Postale, a unit of the state police that investigates cyber crime, who will fact-check them and — if laws were broken — pursue legal action. In cases where no laws were broken, the service will still draw upon official sources to deny false or misleading information.

It seems as though this could be handled without government interference -- especially not the sort that might result in armed officers showing up at a press agency's HQ, demanding rebuttals, deletions, or arrests of fake news offenders. The government's anti-fake news effort even gives the government a platform for "more speech," which is all speech like this really needs to be greeted with.

Getting facts wrong should be a black eye (not literally!) for journalists, rather than a criminal offense. Fake news spread maliciously should be greeted with little more than fact checking and debunking. This can -- and should -- be handled by journalists and citizens. Giving the government a platform for debunking caters to its innate desire to control the narrative in questionable situations. The government is certainly welcome to present its own side and deliver facts that rebut claims made by others. But it doesn't need legislation to do this and it certainly does not need to bring law enforcement into the mix.

Adding to the host of problems is the fact that "fake news" hasn't been clearly defined by the government. True, the term resists strict definition, but the lack of discernible contours means the government can simply target any speech it doesn't like and force the issue by handing it over to the police force. The opening of an online portal invites further abuse by citizens who prefer shouting down people with opposing views, rather than engaging in constructive discussions.

Whenever the police is given the task of dealing with the truth and falsehood of news and political content, yes, those who care about democracy should be worried — not feel protected,” [journalist Fabio] Chiusi said. “Citizens in healthy democracies don’t need to be protected from falsehood of this sort: they should be able to freely exercise their judgment, with no interference from state authorities — especially the police.”

Arianna Ciccone, founder of the International Journalism Festival, agreed. She told Poynter in an email that the initiative — which Chiusi said doesn’t offer a counter-measure for those who might be falsely accused — opens up the possibility of future infringements of free speech by the government, as well as a potential cooling effect on the press.

In short: If journalists are too afraid that making a mistake will result in legal intervention, what will go uncovered?

Reporters will not only shy away from publishing articles while details are still emerging, but will also be deterred from publishing anything the government might disagree with. The term "fake news" has become shorthand for news anyone disagrees with, whether or not the contents are untrue. This gives the Italian government free rein to harass news outlets it doesn't like. Even if journalists are ultimately cleared of criminal charges, they'll be forced to spend time and money defending themselves and the outlets they work for will likely face future harassment from authorities. Once you're on law enforcement's radar, you're there forever. It's the newsroom equivalent of inner city life, where merely existing in a "high crime" area exposes you to constant, unprovoked "interactions" with law enforcement.

Normally, I'd say something like "the legislation's aim is noble," but in the case of governments v. fake news, that can't even be said. The term eludes strict definition which is the sort of thing you definitely need if you're going to regulate speech. Providing a direct pipeline to police mobilization is perhaps the worst "solution" presented so far. And as the anti-fake news effort picks up steam, the ripple effect will move beyond harassed journalists to every Italian citizen who's "liked" or retweeted social media posts deemed "fake news" by a law enforcement entity.

The dispute with Gilead, which Ukraine's Ministry of Justice had characterized as an $800 million dispute, relates to the drug sofosbuvir (sold by Gilead as Sovaldi). Sovaldi, a highly effective treatment for chronic hepatitis C, has been available in Ukraine -- a country reportedly home to over 2 million people infected with hepatitis C -- since 2015, but the company has lately been locked in a struggle over the ability of generic companies to market cheaper versions of the drug in Ukraine.

According to details of the settlement released by Ukraine's Ministries of Justice and Health, the settlement sees Gilead refrain from pursuing its damages claims against the country, and will see the company offer Sovaldi (and a combination therapy called Harvoni) at a reduced price.

Also, following the settlement, a generic competitor of Gilead has seen its own competing drug de-registered by authorities.

By de-registering the generic competitor to Gilead, the Ukrainian government is allowing the US company's to maintain its monopoly on the drug. In Colombia, the Swiss drug company Novartis also used the threat of a corporate sovereignty lawsuit, in this case to put pressure on the government there to stop it from issuing a compulsory license for a key anti-cancer drug, which would allow low-cost generics to be produced:

Leaked letters (PDF) to the Ministry of Trade and Industry show how Novartis threatened to resort to international investment arbitration for an alleged violation of the Swiss-Colombian bilateral investment treaty (BIT), which was signed by both countries in 2006. This undemocratic procedural mechanism, better known as Investor-State dispute settlement (ISDS), forms part of many trade agreements and allows an investor from one country to bring a case directly against the country in which they have invested before a private international arbitration tribunal, without going through local courts first. This threat has undoubtedly influenced the decision of the Colombian health authorities to stop short of pursuing a compulsory license, focusing only on a price reduction.

It's not just drug companies that try to use ISDS litigation to force governments to reverse their policies. Here's an oil and gas exploration company that is unhappy with a decision by the Italian parliament to ban new exploration and production activity within 12 nautical miles of the coast because of concerns for the environment and the high risk of earthquakes:

Rockhopper Exploration is fighting for compensation from Italy after it banned offshore drilling, leaving the company unable to develop one of its oil and gas fields.

The Aim-listed explorer said that it had begun international arbitration against the country for "very significant monetary damages" over the loss of future profits from its Ombrina Mare field.

Since Rockhopper is an oil exploration company, it must have carried out detailed studies on the geology of the field before deciding to drill for oil and gas. Either its geologists were negligent in not spotting that there was a risk of earthquakes which made the area unsuitable for exploitation, or the company knew about the dangers, and decided to continue with its plans anyway. In any case, it's ridiculous that Rockhopper thinks the Italian government owes it money for "lost future profits" that clearly never existed anywhere other than in the company's fantasies.

This is a general problem with corporate sovereignty claims: they often invoke some mythical "future profits" as if those were indisputable and guaranteed. But business is based on rewarding calculated risk-taking, and that includes the risk that hoped-for profits never materialize. ISDS is an attempt to remove the risk of investment from companies, and place it squarely on the public's shoulders, without any quid pro quo.

from the what? dept

The absolute scariest cab ride of my life happened in Rome a few years back, and I'd prefer not to relive that experience, but apparently I might not have much of a choice next time I'm in Italy, as the country recently banned Uber completely, claiming that it was "unfair competition." Now, let's be clear: there are many, many reasons to not like or trust Uber. You certainly have every right to not like the way it goes about its business or the way it treats drivers. You can refuse to use the service all you want and you can tweet #DeleteUber and whatever else you like... and yet you still should be concerned about this.

Uber isn't being blocked in Italy because of its business practices. It's being blocked in Italy because the taxicabs there don't like the competition, and a court has ruled that those cabs shouldn't face competition. Again, no matter what you think of Uber's own business practices, it's pretty damn clear that everywhere that Uber or similar services operate, what everyday people tend to get are better options for transportation. It makes it easier for people to get a ride when they need it, it adds much needed supply to the market, and it tends to be a better overall experience (and there's at least some evidence that it also prevents drunk driving).

In the end, when it comes to innovation, our general stance around here is that what you need more than anything else is competition. Competition drives innovation. It drives better customer service. Having courts come in and block competition in favor of an organization famous for limiting the number of competitors in the market is never going to be a good thing. If you're upset by Uber's business practices, target those business practices. But doing an outright ban on competition doesn't seem to help anyone, other than the legacy taxi providers.

from the zoom-zoom! dept

A years-long fight in Italy between copyright rightsholders (chiefly Hollywood) and consumer groups looking to protect Italian citizens, took a dark turn recently. If you aren't already aware, the Italian government put in place a delightful regulation in 2014 giving the Authority for Comunications Guarantees (AGCOM) the authority to simply block websites deemed infringing outright, without the need for such pesky things as court cases or trials. Consumer groups immediately challenged the regulation, stating that it violated the Italian constitution, specifically suggesting that giving a government body the authority to unilaterally block websites without any sort of judicial review was a violation of the exercise of freedom of expression and economic initiative. Given exactly how often demonized websites are demonstrated to have perfectly legitimate uses, not to mention how absolutely terrible every government everywhere seems to be in understanding and protecting things like Fair Use, it's an easy argument to understand.

The case was initially rejected by the Constitutional Court in 2015, which referred it back to the administrative court of Lazio. Last week this court decided that the site blocking procedure is in line with both European and Italian law. According to the court, the site-blocking regulation is compatible with the European Union’s E-Commerce Directive as well as the Italian Copyright Act. In addition, the procedure doesn’t violate the Italian constitution or fundamental rights in general, as opponents had argued.

Overall the case is seen as a significant victory for copyright holders. Not only can they continue with their site-blocking requests, but the court also clarified that all the blocking costs must be paid by Internet providers.

In other words, it's now open season on sites that rightsholders decide they don't like. No need for a trial in which to prove any actual allegations. No need to prepare a rebuttal from a defendant arguing for their own rights. Instead, rightsholders, such as Hollywood, can petition to have a site blocked and, if AGCOM agrees, the site is blocked without any due process. And, because ISPs are apparently there only to serve failing business models, all the costs associated with these review-less blocks are shouldered by the ISPs.

If you think that the copyright trolls and Hollywood aren't licking their chops to go site-blocking crazy after this decision, you've lost your mind.

“This is a big win for rightsholders,” says Enzo Mazza, chief of the Italian music group FIMI, who says that they have plans to expand the current scope of the blocking efforts.

“Our future goal is now to increase the enforcement of AGCOM to also cover new forms of piracy such as live streaming, stream ripping and similar issues. In addition, we hope AGCOM will extend the blockades to the IP-address level as the Criminal Courts are using now,” Mazza tells TorrentFreak.

And away we go. Licensing groups and rightsholders will now look to slam open the door the court left ajar for them. As the blocks are expanded, you can pretty much count on collateral damage that will harm Italian citizens and restrict their freedom both of speech and access to legitimate internet sites. But no worry, because it's not like there is a court that will oversee all of this. Instead, websites and the surfing public will live only at the pleasure of AGCOM.

from the benvenuto-al-registro-dei-captatori dept

As Techdirt has just reported, even though encryption is becoming more widespread, it's not still not much of a problem for law enforcement agencies, despite some claims to the contrary. However, governments around the world are certainly not sitting back waiting for it to become an issue before acting. Many have already put in place legal frameworks that allow them to obtain information even when encryption is used, predominantly by hacking into a suspect's computer or mobile phone. In the US, this has been achieved with controversial changes to Rule 41; in the UK, the Snooper's Charter gives the government there almost unlimited powers to conduct what it coyly calls "equipment interference."

One of the main tools for carrying out surveillance in this way is the trojan -- code that is placed surreptitiously on a suspect's system to allow it to be monitored and controlled by the authorities in real time over the Internet. There are clearly huge risks and problems with this approach, something that a legislative proposal from the Civic and Innovators parliamentary group in Italy tries to address, as explained by Fabio Pietrosanti and Stefano Aterno on Boing Boing. The draft law is the result of nearly two years' work by a group of experts from many fields:

a former speaker of the Parliament, civil rights activists, law enforcement officers, computer forensics researchers, prosecutors, law professors, IT security experts, anti-mafia and anti-terrorism departments and politicians.

Perhaps that breadth explains why the ideas are really pretty good, for once. The underlying principle is that a government trojan is only allowed to operate in ways that have been explicitly authorized by an Italian judge's signed warrant. For example:

A Telephone Wiretapping Warrant is required to listen a Whatsapp call.

A Remote Search and Seizure Warrant is required to acquire files on remote devices.

An Internet Wiretapping Warrant is required to record web browsing sessions.

The same kind of warrant that would be required for planting a physical audio surveillance bug is required to listen to the surrounding environment with the device’s microphone.

Those kinds of legal safeguards are welcome, but they are not enough on their own. Also needed are stringent technical controls that will limit the harm and risk of introducing government malware onto a system. The working group has addressed this too with a series of innovative requirements for trojan surveillance programs:

a. The source code must be deposited to a specific authority and it must be verifiable with a reproducible build process (like the Tor Project and Debian Linux are doing)

b. Every operation carried on by the trojan or through its use must be duly documented and logged in a tamper proof and verifiable way, using cryptographic time-stamping and digital signing, so that its results can be fairly contested by the defendant during the inter partes hearing [that is, with everyone involved present].

c. The trojan, once installed, shall not lower the security level of the device where it has been activated

d. Once the investigation has finished, the trojan must be uninstalled or, otherwise, detailed instruction on how to self-remove it must be provided.

e. Trojan production and uses must be traceable by establishing a National Trojan Registry with the fingerprint of each version of the software being produced and deployed.

f. The trojans must be certified, with a yearly renewal of the certification, to ensure compliance with the law and technical regulation issued by the ministry.

It's a remarkable list of technical and operational requirements that are surely unique in their attempt to minimize the key dangers of implanting clandestine surveillance software. Of course, it would be better if the use of government malware were avoided completely, and other methods were adopted. But realistically, the police and intelligence agencies around the world will be pushing hard for legislation to allow them to infect people's computers and mobiles in this way, not least if encryption does become more of a problem.

Given that trojans will be used, whether we like it or not, far better to constrain them as much as possible through well-thought out rules such as those drawn up by the Italian parliamentary group. Let's hope their proposals are adopted without significant amendments by the Italian parliament so that they can be used as a template for similar laws in other jurisdictions.

from the but-can-you-define-it? dept

Over and over again, we've talked about the ridiculousness of the moral panic around so-called "fake news" -- a broad and somewhat meaningless term now used to describe just about anything from actual made-up stories, to news articles that have a small factual error, to those with a "spin" that someone disagrees with. And, as we warned, the panic of "fake news" is leading to widespread calls for censorship. A few weeks ago, we wrote about how German officials were supporting a plan to criminalize "fake news" and now Italy wants to join in on the fun. In an interview with the country's antitrust chief, Giovanni Pitruzzella, he argued that it's really time to crack down on the internet, with government wielding the censorship power over whatever it calls "fake news."

“Post-truth in politics is one of the drivers of populism and it is one of the threats to our democracies,” Pitruzzella said. “We have reached a fork in the road: we have to choose whether to leave the internet like it is, the wild west, or whether it needs rules that appreciate the way communication has changed. I think we need to set those rules and this is the role of the public sector.”

Pitruzzella argued tackling fake news should not be left up to social media companies, but instead be tackled by the state through independent authorities with the power to remove fake news and impose fines, coordinated by Brussels, similar to the way the EU regulates competition.

Any time you hear of a plan for the government to be able to remove news stories or impose fines for reporting, you should get very, very worried. That is a recipe for censorship. Yes, blatantly made-up stories are a problem -- but not one that should be dealt with by expanding the tools of censorship in a way that will be abused. We need to teach better media literacy and get more people to understand how to read critically and to do research. Putting tools to censor and fine journalists in the hands of government will inevitably lead to that power being abused. Someone will report on something that makes a politician look bad, and suddenly it will be declared "fake news." We're seeing that happen already -- even without the threat of fines and censorship.

This focus on "fake news" is becoming increasingly dangerous and many of the people screaming loudest about it -- including lots of journalists -- don't seem to realize where it will end. You can worry about truly made-up stories all you want, but if you think the solution to it is to increase the powers to censor and stifle and chill expression, you're not going to be happy with how it boomerangs back on legitimate expression.

from the what-a-stupid-fucking-law dept

Every so often, we see (probably) well-intentioned, but incredibly stupid, attempts to "fight" online harassment and bullying through laws that make saying things that are "offensive" against the law. In the US, such laws (if they actually get passed) are usually thrown out once someone makes a First Amendment challenge over them, but elsewhere in the world there's no First Amendment to fall back on. Over in Italy, some officials have proposed what may be one of the dumbest such laws in history, written so broadly that it will outlaw a lot more than the kind of "cyberbullying" it's supposedly intended to combat:

Under the proposed law, the "site manager" of Italian media, including bloggers, newspapers and social networks would be obliged to censor "mockery" based on "the personal and social condition" of the victim -- that is, anything the recipient felt was personally insulting. The penalty for failing to take action is a fine of €100,000. Truthfulness is not a defense in suits under this law -- the standard is personal insult, not falsehood.

Yes, mockery on the internet could get you a €100,000 fine. Mockery. The internet. The internet is made for mockery. And now is the time that everyone should be mocking this idiotic law -- and the politicians who proposed it without having the slightest idea of how such a thing would be abused all the time. As Cory Doctorow at BoingBoing notes:

... what it will do is create a tool for easy censorship without due process or penalty for misuse. The standard proposed in the bill is merely that the person on the receiving end of the argument feel aggrieved. Think of the abuse of copyright takedowns: online hosts already receive millions of these, more than they could possibly evaluate, and so we have a robo-takedown regime that lets the rich and powerful routinely remove material that puts them in an unflattering light.

As bad as that is, at least it makes censorship contingent on something specific and objective: copyright infringement, which has a wealth of caselaw defining its contours. Indeed, so much that you need to be a trained expert to adjudicate a claim of infringement. But at least you can objectively assess whether a copyright infringement has taken place.

The standard set by the proposed Italian law allows for purely subjective claims to be made, and for enormous penalties to be imposed on those who question them before undertaking sweeping acts of censorship.

There are some efforts under way to "improve" the law by making it not quite so draconian, but maybe, just maybe, the "improvement" should be to recognize that you're never going to successfully outlaw mockery on the internet.

from the well,-at-least-there's-that dept

Back in December, we wrote about a ridiculous situation in Italy, where the site TripAdvisor was fined €500,000 by local regulators because it wasn't magically stopping people from posting "false reviews" on the site. As we noted at the time, it's stories like this that show why, here in the US, Section 230 of the CDA is so important. It makes it clear that you don't blame a third-party website for actions of its users. What the regulators were demanding was an impossibility. There is no realistic way for a user review site to make sure all the reviews are legit, at least not if it wants to allow user reviews, rather than hiring staff to do every review.

Thankfully, an Italian court has now overturned the fine and acknowledged that it was ridiculous in the first place. Rather than focusing on the problems of intermediary liability, the court just notes that TripAdvisor never made any promises that the reviews were accurate:

“TripAdvisor never asserted that all its reviews were true, pointing out instead that it is impossible to exercise a blanket control and inviting users to consider ‘trends’ in the reviews rather than single contributions,” the court said. “We do not understand the harm to the consumer identified by the Authority in its concluding arguments.”

That's good, though apparently a ridiculous counterproductive group called the National Consumers Union who brought the complaint in the first place wants to keep pressing the issue:

The National Consumers Union remained unconvinced, saying it intended to appeal the court’s “crude thesis.”

“We recognize that controlling on the Web may be more complicated than in a physical market, but the law and supervisory activity cannot remain permanently two steps behind current progress,” Massimiliano Dona, the union’s secretary, said in a statement.

This, of course, makes no sense. It's an argument for not the internet, in which anyone can express an opinion, but rather a top-down broadcast system, in which any statement must first be vetted. That would, effectively, destroy much of the power of the internet. It's hard to see how that helps "consumers" in Italy at all.